Potential Workplace Spread of COVID-19: Could OSHA Be Liable?

One of the greatest challenges of the COVID-19 pandemic has been balancing the need for essential infrastructure workers to continue working with workplace health and safety concerns. Employers have a general duty to keep the workplace free from recognized hazards and comply with the regulations promulgated by OSHA. OSHA and the CDC have issued joint guidance for returning to work safely and sector-specific guidelines for those workers particularly at risk. Despite calls for OSHA to take regulatory action to protect workers from COVID-19, the agency has relied on voluntary guidelines. Over 6,000 COVID-19-related OSHA complaints have been filed, but OSHA has issued few citations to employers. Now, workers are taking action into their own hands.

There has been a flurry of lawsuits across the country related to COVID-19 workplace health and safety concerns. On July 22nd, the nonprofit Justice at Work filed suit against the Secretary of Labor Eugene Scalia (“the Secretary”) and OSHA. Justice at Work filed the lawsuit on behalf of three Maid-Rite Specialty Foods (“Maid-Rite”) employees (“the workers”) who work at the company’s meatpacking plant in Dunmore, Pennsylvania (“the Plant”). The workers filed the lawsuit anonymously to protect themselves from potential employer retaliation. The complaint alleges that Maid-Rite failed to implement the CDC/OSHA guidelines and protect the workers from the spread of COVID-19. Further, the workers assert that the conditions at the Plant present an imminent danger. The workers are seeking a court order to compel the Secretary to alleviate the workplace conditions.

The workers assert that Maid-Rite put profits over the well-being of their workers in the Plant, despite recommendations by the CDC and OSHA to adjust the workplace and reduce production to protect workers from potential spread of COVID-19. The workers argue that Maid-Right violated this general duty to protect workers by failing to (1) provide cloth face coverings, (2) properly social distance workstations and employees, (3) offer adequate sanitation opportunities and supplies, (4) inform workers of potential COVID-19 exposure, and (5) adjust company policies that incentivize employees to work while sick. The workers filed OSHA complaints dating back to three months prior to filing suit. They claim that OSHA has not done enough to protect the essential workers from the potential hazards at the Plant. The complaint highlights that OSHA’s investigation and enforcement process can be lengthy and last longer than a year. They assert that a court order is necessary because the workers need relief sooner than that can be awarded through the agency’s administrative enforcement process. The workers assert that the potential spread of COVID-19 due to Maid-Rite’s failure to implement the most basic CDC/OSHA recommendations presents an imminent danger to the workers. Because OSHA has failed to take quick abatement action and the Secretary was arbitrary and capricious in failing to seek relief, the workers argue, they are entitled to bring this action before the court to compel the Secretary to act.

On July 28th, OSHA filed a motion to dismiss in response to the complaint. OSHA contends that the agency conducted an investigation, which is still ongoing at this time, into the conditions at the Plant. Regardless, OSHA argues that the agency has broad prosecutorial discretion. OSHA posits that this case does not meet the circumstances necessary to allow an individual to seek a relief order from a federal court. See 29 U.S.C. § 622(c)-(d). OSHA suggests that for an individual to bring such an action in court the following must occur:

1. an OSHA agent must conclude that the working conditions present an imminent danger;
2. such agent must recommend to the Secretary that relief is to be sought; and
3. the Secretary must arbitrarily or capriciously fail to seek relief.

OSHA asserts that this case does not satisfy the statutory requirements because OSHA has not made a finding of imminent danger nor recommended to the Secretary that relief be sought. OSHA argues that a court has jurisdiction only to determine if the Secretary was arbitrary or capricious in failing to seek relief after a recommendation that an imminent danger be relieved. Furthermore, even if this action were allowed without a finding of imminent danger by an OSHA agent, the complaint alleges only the possibility of COVID-19 spread. According to OSHA, the possibility of spread does not rise to the level of imminent danger. Maid-Rite has not reported any work-related hospitalizations or fatalities, and the complaint does not allege any recent or ongoing cases. Imminent danger is defined as “a danger [that] exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated[.]” OSHA argues that because of the lack of imminent danger, there is no standing for the workers to bring this suit and the court should dismiss.

In similar proceedings, no court has granted relief to an employee. Nevertheless, the outcome of this case is fundamental in shaping the nature of litigation to follow from COVID-19. This case will be illustrious in determining the scope of OSHA prosecutorial discretion and protections afforded to employers. In a case challenging OSHA’s discretionary authority and urging the agency to issue an emergency temporary standard (ETS) in response to COVID-19, the D.C. Circuit Court of Appeals held that OSHA has the discretion to implement and exercise the regulatory tools at its disposal as the agency sees fit. See In re American Federation of Labor and Congress of Industrial Organizations, No. 20-1158 (D.C. Cir. June 11, 2020). The D.C. Circuit Court’s holding reflects the court’s tendency to defer to OSHA’s discretionary authority; it will be interesting to see if this trend continues.

The Maid-Rite workers’ case is Jane Does I, II, III, et al. v. Eugene Scalia, et al., Case No. 3:20-cv-01260, in the U.S. District Court for the Middle District of Pennsylvania.